Is a foreign national inadmissible for misrepresenting a material fact if at the time of filing his/her application for permanent residence or at the time of granting permanent residence he/she had no knowledge of the material fact that constituted such misrepresentation?

The Federal Court of Appeal’s answer to this certified question will likely clarify many aspects of s. 40 misrepresentation.

The facts giving rise to the question can briefly be summarized as follows: Mr. Osisanwo submitted a birth certificate stating that he was the child of Cladius and Modupe. Immigration officials were not satisfied with the birth certificate and required DNA testing. The testing concluded that while Modupe was Mr. Osisanwo’s mother, Cladius was not his father. Modupe stated that she did not know that Cladius was not the biological father, and this point as not challenged.

In discussing the jurisprudence on the matter, Justice Hughes quoted at length from the Federal Court’s decision in Singh v. Canada (Minister of Citizenship and Immigration), 2010 FC 378. There, the court stated that:

Given that the word “knowingly” does not appear in Section 40, it follows, the submission goes, that knowledge is not a prerequisite to a finding of misrepresenting or withholding material facts. Undoubtedly, the existence of a child is a material fact.

I do not find this comparison helpful. Section 127 is in the “General Offences” section of IRPA. A misrepresentation could lead to imprisonment for a term of up to five years.

One of the most difficult issues to resolve when an individual is immigrating to Canada are allegations from the Government of Canada about misrepresentation.

Section 40(1)(a) of Canada’s Immigration and Refugee Protection Act states provides that a permanent resident or a foreign national is inadmissible to Canada for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canadian immigration law.

A significant issue that often arises is whether or not a misrepresentation has to be intentional. The jurisprudence consistently provides that in order for a finding of misrepresentation to be made an applicant doe not have to intend to misrepresent themselves: Chen v. Canada, 2005 FC 678. IRCC officers do, however, have to be satisfied that the person was subjectively aware of the information that they allegedly misrepresented, and that a party cannot be faulted for failing to impart information which is unknown to him/her: Jean-Jacques v. Canada, 2005 FC 104.

But what about where there is an innocent mistake or misunderstanding? If an officer is satisfied that an individual has innocently misrepresenting something, can the fact that the misrepresentation was innocently made be an exception to misrepresentation?

In Berlin v. Canada (2011), the Court explored in detail whether such an exception exists. There, an immigration officer determined that Mr. B had committed misrepresentation because Mr. B failed to declare his relationship as the adoptive father of two children from a previous marriage. When the immigration officer asked why he did not declare them, Mr. B indicated that he did not believe them to be dependants for the purpose of Canadian immigration purposes.

In analysing the issue of whether innocent mistake was an exception to misrepresentation,

An individual who is criminally inadmissible to Canada will be eligible to apply for rehabilitation after five years have passed since the individual completed his/her sentence. A sentence can include imprisonment, a fine, or probation.

Next to probation, the payment of a fine is a type of sentence that can significantly extend a person’s sentence for Canadian immigration purposes. The reason is because the payment of fines are often staggered over a period of time. This is especially the case in the United States, where, for example, I have seen fines of $2000 stretched over twenty $100 monthly payments.

The Supreme Court of Canada recently released a decision which makes me wonder whether there may be a potential argument that a fine imposed outside of Canada should not be counted for the purpose of determining eligibility to apply for rehabilitation if the inadmissible person can argue that he/she simply cannot pay it.

In R v. Topp, 2011 FC 43, the accused used his brokerage business to defraud Canada Customs of $4.7 million. The Crown sought a $4.7 million fine in addition to imprisonment. The trial judge sentenced the accused to imprisonment but declined to impose a fine because she was not satisfied as required by s. 734(2) of the Criminal Code that the accused was able to pay a fine.

Section 734(2) of Canada’s Criminal Code provides that:

Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736.

The test for determining whether an individual is inadmissible to Canada is closely inter-twined with the criminal justice system of every country that that person has lived in. The determining factor for whether an individual is inadmissible to Canada or not is whether the person was convicted. It is not what the sentence was.

Our immigration system’s emphasis on convictions over sentences bears little resemblance to how the criminal-justice system of most countries work. Most people who are charged with an offense are more concerned with what their sentence will be (“will I receive jail time?”) as opposed to whether they are convicted. Accordingly, plea-bargaining has become the hallmark of most states’ criminal-justice system. Individuals who probably would not be convicted of their serious original charge are more than willing to avoid the risk of being convicted by pleading guilty to a lighter offense in exchange for little to no sentence.

Unfortunately, this leads to the trend of there being a lot more people with criminal records out there then there otherwise would be if people did not succumb to plea-bargaining, and if prosecutors not able to so rely on bargain results. The Journal of Law, Economics and Policy recently published an article highlight this relationship between plea-bargaining and overcriminalization. The article is titled “Overcriminalization 2.0: The Symbiotic Relationship between Plea Bargaining and Overcriminalization”, and can be downloaded here.

Some key excerpts include:

There is an enormous problem with plea bargaining, particularly given that over 95% of defendants in the federal criminal justice system succumb to the power of bargained justice.

(Citing the United States Supreme Court) This is not to say that guilty plea convictions hold no hazard for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all respects.

Individuals can be inadmissible to Canada for numerous reasons, including criminality, misrepresentation, medical issues, and non-compliance with Canadian immigration legislation. This latter reason, non-compliance with the Canadian immigration legislation, can seem extremely vague. Fortunately, the Citizenship and Immigration Canada Manual contains a list of the different frequently used reasons for declaring someone inadmissible for non-compliance with the Act.

They are:

Entering Canada to remain on a permanent basis without first obtaining a permanent resident visa.

Entering Canada to remain on a temporary basis without first obtaining a temporary resident visa.

Not holding a medical certificate that is based on the last medical examination.

Not holding the required documents to enter Canada.

Not establishing that the person will live Canada by the end of the authorized period.

Where a person is subject to an enforced removal, returning to Canada without authorization.

Working without authorization.

Studying without authorization.

Not leaving Canada at the end of the authorized period.

Not reporting to a port of entry examination without delay.

Being a permanent resident and not complying with the residency requirement.

Given all this, you might wonder how it is that more people aren’t declared inadmissible to Canada. The reason is that immigration officers have the discretionary power to decide whether or not to write what is known as an A44(1) inadmissibility report.

Sometimes, the Immigration and Refugee Protection Act and its regulations can force individuals to make really difficult choices. I recently encountered this when a client presented issues raising a refugee claim based on sexual orientation, an inadmissible spouse who had been working with a work permit, potential misrepresentation based on a misunderstanding of the law, and really difficult choices.

Because I for obvious reasons cannot get into any details on my own clients, I’m going to present the “inadmissible spouse issue” by summarizing a recent Federal Court case: Abalos v. Canada (Citizenship and Immigration).

In Abalos, the Applicant was a live-in caregiver living in Canada whose application for permanent residence was approved-in-principle. As there was nothing to suggest that she was medically or criminally inadmissible, the coast was essentially clear for her to become a permanent resident.

Prior to the Applicant’s application being approved in principle, the Applicant married a refugee claimant in Canada. The man was from the same country that she was.

Shortly after learning that her application was approved-in-principle, the Applicant sent a letter to Citizenship and Immigration Canada informing them that she had gotten married.

One month later, the Applicant’s husband’s refugee claim was rejected. The rejection of the refugee claim resulted in the husband being the subject of an unenforceable removal order.

This, unfortunately, triggered the application of s. 113(1)(e) of the Regulations, which provide that:

Permanent residence

113. (1) A foreign national becomes a member of the live-in caregiver class if

(e) they are not, and none of their family members are, the subject of an enforceable removal order or an admissibility hearing under the Act or an appeal or application for judicial review arising from such a hearing;

One of the challenges in immigration law is determining the appropriate balance between the understandable necessity of ensuring that visa applicants are upfront and honest and humanitarian & compassionate considerations (“H&C considerations”).

No where is this challenge more pronounced then when there are children involved. In Baker v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada stated that H&C considerations require that immigration officers consider the best interests of a child when there are children involved.

It follows that the legal principle of the “best interests of the child” may be subordinated to other concerns in appropriate contexts. For example, a person convicted of a crime may be sentenced to prison even where it may not be in his or her child’s best interests. Society does not always deem it essential that the “best interests of the child” trump all other concerns in the administration of justice. The “best interests of the child”, while an important legal principle and a factor for consideration in many contexts, is not vital or fundamental to our societal notion of justice, and hence is not a principle of fundamental justice.

The subject unreasonable delays often arise in the immigration context. In one case that I was previously involved with, an individual was in Canada for 11-years before the Canada Border Services Agency expressed concerns that he might be inadmissible to Canada for previous involvement in a group accused of terrorism. In another case, an individual who had been in and out of Canada numerous times was suddenly denied entry to Canada because of a criminal conviction that occurred eight years ago. In both cases, the client asked whether the delay amounted to an abuse of process, and if so, what the remedy was.

In Blencoe, three women filed complaints of sexual harassment to the British Columbia Human Rights Council. Due to delays the tribunal hearings were not resolved for 30 months after the first filing. The accused challenged that the 30 month delay was an abuse of process, an argument which the Supreme Court of Canada ultimately rejected, and also found that the Charter was not engaged. Importantly, the Supreme Court found that a state caused delay, without more, does not warrant a stay as an abuse of process at common law, and that there must be significant prejudice to the individual as a result of the delay.

The following principles emerged from Blencoe:

The administrative process must be conducted in a manner entirely consistent with the principles of natural justice and procedural fairness.

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Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.